Shapiro Arato Bach

White Collar Criminal and Regulatory Defense and Appeals

• Obtained Supreme Court rulings vacating and remanding Second Circuit decisions in two cases narrowing the scope of the honest services fraud and wire fraud statutes, Percoco v. United States and Ciminelli v. United States, for executives at COR Development, a real estate company.
• Obtained reversal of wire fraud and related charges against former Deerfield analyst in appeal challenging novel government theories that regulatory information is government “property” and that certain fraud statutes do not require proof of “personal benefit” in insider trading cases.  Obtained Supreme Court ruling remanding case to Second Circuit for reconsideration in light of Kelly v. United States and Second Circuit ruling on remand vacating convictions.
• Representing former employee of OpenSea in appeal raising novel issue about the application of the federal wire fraud statute to information about non-fungible tokens featured on company’s website.
• Representing former J.P. Morgan metals trader in Seventh Circuit appeal of “spoofing” conviction.
• Representing former CEO of The Federal Savings Bank in appeal of bank bribery conviction arising from loans to Paul Manafort.
• Representing former dean of Fox Business School at Temple University in appeal of wire fraud convictions arising from alleged submission of false information to U.S. News and other educational rankings publishers.
• Won Second Circuit reversal of conviction of former executive of Chinese construction company on forced labor charges based on evidentiary errors, including erroneous admission of uncharged crimes evidence and expert testimony and ruling limiting defense cross-examination.
• Won unanimous ruling from New York Court of Appeals affirming grant of new trial based on juror misconduct in Syracuse murder case.
• Represented former HSBC global head of foreign exchange trading in appeal of wire fraud convictions relating to multi-billion-dollar “fix” transaction.
• Won Second Circuit appeal vacating insider trading conviction of former JP Morgan Chase investment banker Sean Stewart due to erroneous exclusion of exculpatory evidence.
• Won Second Circuit appeal vacating conviction of former New York Senate majority leader Dean Skelos on public corruption charges.
• Represented Mathew Martoma, former SAC portfolio manager, in appeal of insider trading conviction.
• Lead counsel for petitioner in Salman v. United States, criminal insider trading case argued in the Supreme Court of the United States in October 2016.
• Obtained Second Circuit reversal of conviction of former Deutsche Bank broker on charges related to Jenkens & Gilchrist tax shelters, based on deprivation of client’s constitutional right to an impartial jury by a juror who engaged in extensive misconduct.
• Won Second Circuit appeal reversing insider trading conviction of Anthony Chiasson in landmark case of United States v. Newman.
• Won Second Circuit appeal reversing conviction of tax lawyer and former partner of Ernst & Young arising from his work on the firm’s tax shelter practice.
• Won Second Circuit appeal granting new trial for former chief marketing officer of U.S. subsidiary of Royal Ahold who had been convicted of securities fraud and related offenses.
• Counsel of record for New York Council of Defense Lawyers on amicus briefs cited in two Supreme Court opinions involving the U.S. Sentencing Guidelines, United States v. Booker and Rita v. United States, and brief filed on related issue in United States v. Gall.
• Represented former CEO of telecommunications company in Tenth Circuit appeal of insider trading conviction raising complex issues under the federal securities laws and the Classified Information Procedures Act. Obtained ruling reversing conviction and granting new trial. After en banc Court vacated panel opinion, 5-4, obtained ruling reversing sentence based on district court’s misinterpretation of insider trading guideline and forfeiture statute.
• Co-authored brief for Arthur Andersen in U.S. Supreme Court appeal reversing criminal conviction for alleged obstruction of justice.
• Represented CEO of public company in criminal insider trading case in Southern District of New York. Obtained dismissal of §10(b) count before trial and judgment of acquittal on remaining §14(e) count after two trials, including one resulting in hung jury. Successfully defended judgment of acquittal before Second Circuit.
• Represented various officers and directors in connection with options timing investigations by Board Special Committees, the S.E.C., and the U.S. Attorney’s Office for the Southern District of New York, as well as parallel civil class action and derivative suits, including Eighth Circuit appeal of injunction and related Minnesota Supreme Court appeal on standard of review of special litigation committee decisions. Clients in these matters included the former Chairman and CEO of a major health insurance company.

Internal Investigations and Compliance

• Served as Independent Consultant for  NYSE Euronext, pursuant to SEC Order, charged with conducting a comprehensive review of the market data delivery systems, and the policies, procedures and practices regarding compliance with Rule 603(a) of Regulation NMS of NYSE’s securities exchanges to ensure that the systems comply with Rule 603(a).
• Conducted internal investigation on behalf of Audit Committee of publicly-traded financial institution into whistleblower allegations of financial impropriety and provided recommendations for enhancing internal controls.
• Conducted internal investigation on behalf of independent directors and Audit Committee of publicly-traded mortgage bank into issues related to $700 million restatement of earnings and negotiated company’s settlement with S.E.C.
• Represented corporate and individual clients in connection with investigations by the S.E.C., the New York Attorney General’s Office and the U.S. Attorney’s Office for the Southern District of New York, of potential state and federal securities law violations related to mutual fund late trading and market timing.

Complex Civil Litigation and Appeals

• Won Second Circuit appeal reversing grant of discovery and quashing subpoena issued under 28 U.S.C. §1782, statute authorizing discovery in aid of foreign proceedings.
• Representing Level the Playing Field, a non-partisan, non-profit organization not affiliated with any candidate, in connection with efforts to reform the rules for general election presidential debates so that an independent candidate can participate in 2020.  Won summary judgment in D.C. District Court declaring that the Federal Election Commission was arbitrary and capricious in dismissing our clients’ administrative complaints and petition for rule making.
• Won D.C. Circuit appeal by Unity08, a non-partisan group seeking to nominate an independent presidential candidate, of ruling permitting Federal Election Commission to regulate the group as a “political committee” under Federal Election Campaign Act.
• Successfully defended former directors and officers of publicly-traded Canadian mining company against federal securities fraud claims.
• Represented General Cigar Company in complex lawsuit filed by Cuban company asserting trademark infringement, violation of international trademark treaties, and related claims arising from General Cigar’s use of COHIBA mark on cigars sold in the U.S. Obtained ruling by Second Circuit vacating injunction and successfully opposed certiorari.
• Represented Playtex Products, Inc. in successful Second Circuit appeal in false advertising case and successful Federal Circuit appeal in patent case.
• Represented major financial institution in NYSE arbitration involving claims by former brokers alleging damages of $90 million, which panel dismissed after hearing.